Citation Nr: 21074509 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-38 633 DATE: December 15, 2021 ORDER Recognition of D.M. as the Veteran's dependent child based on permanent incapacity for self-support prior to attaining the age of 18 is granted. FINDING OF FACT The evidence of record is at least in approximate balance as to whether the Veteran's stepson D.M. was permanently incapable of self-support by reason of mental defect prior to attaining the age of 18. CONCLUSION OF LAW The criteria for recognizing D.M. as the Veteran's dependent child based on permanent incapacity for self-support prior to attaining the age of 18 are met. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.102, 3.315, 3.356. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1975 to September 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claims file currently resides with the Atlanta, Georgia RO. In May 2021, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Recognizing D.M. as a Dependent Generally, if a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling, an additional amount of compensation may be payable for a spouse, child, and/or dependent parent. See 38 C.F.R. § 3.4(b). In this case, the Veteran has been in receipt of a 60 percent disability rating since January 2017. As such, the Board finds the 30 percent eligibility threshold established in 38 C.F.R. § 3.4(b) to be satisfied in the instant case. Moving beyond this initial threshold determination, the Board notes that the Veteran is seeking dependent pay for his stepson D.M. 38 C.F.R. § 3.57, and the underlying statutory provision 38 U.S.C. § 101(4), define the term "child" for VA purposes. 38 C.F.R. § 3.57 includes a stepchild who acquired that status before the age of 18 and who is a member of the veteran's household, or was a member of the veteran's household at the time of the veteran's death, within the concept of "child." Here, the record demonstrates that D.M. obtained stepchild status in April 2000, well before his 18th birthday. See Copy of D.M.'s Birth Certificate, received in December 2021 (indicating that D.M. was born in December 1996 and that his mother was P.G.); Marriage Certificate received in January 2018 (noting that the Veteran married P.G. in Lima, Peru in April 2000). Additionally, as the evidence demonstrates that the D.M. was a member of the Veteran's household, the Board finds that D.M. may be considered as an eligible child of the Veteran for VA purposes. See 38 C.F.R. § 3.57; Board Hearing Tr. at 3-4. As referenced immediately above, the Board notes that D.M. was born in December 1996 and, therefore, turned 18 years old in December 2014. Generally, a child of a veteran does not qualify as a dependent for VA purposes once he or she attains 18 years of age. However, an adult child of a veteran may be considered a "child" for dependency purposes if he or she is unmarried and (1) was permanently incapable of self-support by reason of mental or physical defect before reaching age 18a "helpless child;" or (2) is between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. The evidence of record does not indicate that D.M. is currently married, and the Veteran has contended that D.M. should be added to his award as a dependent due to helpless child status. After reviewing the evidence of record, the Board finds the evidence to be in at least approximate balance as to whether a mental defect rendered D.M. incapable of self-support prior to the age of 18. Resolving reasonable doubt in the Veteran's favor, the Board grants the Veteran's claim. See 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). In support of this determination, the Board first notes that 38 C.F.R. § 3.356 provides several factors to consider when determining whether a child under the age of 18 permanently was incapable of self-support. Those factors are as follows: (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. (3) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. Id. In addition, the Court of Appeals for Veterans Claims (Court) has held that, in "helpless child" cases, the focus must be on the child's condition at the time of his or her 18th birthday. See Dobson v. Brown, 4 Vet. App. 443, 445 (1993). In other words, for purposes of initially establishing helpless child status, the child's condition subsequent to his or her 18th birthday is not for consideration. If a finding is made that a child was permanently incapable of self-support as of his or her 18th birthday, however, then evidence of the child's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the child capable of self-support. Id. If the child is shown to be capable of self-support at age 18, VA is required to proceed no further. Id. Applying these principles to the instant case, the record demonstrates that the D.M. was diagnosed with schizoaffective disorder prior to his 18th birthday. Specifically, during the May 2021 Board hearing, the Veteran testified that D.M. was initially diagnosed with schizophrenia at the age of 12 or 13. See Board Hearing Tr. at 3-4; January 2018 Statement. As a layperson, the Veteran is competent to report a contemporaneous diagnosis, and the Board finds the Veteran's lay statements credible in the instant case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, as recorded in a May 2014 behavioral health discharge summary from Tanner Medical Center, D.M. was diagnosed with schizoaffective disorder, depressed type, at the age of 17. Accordingly, the Board concludes that D.M. experienced a mental health disability with an onset prior to his 18th birthday. Turning next to D.M.'s capacity for self-support prior to his 18th birthday, the Board first notes that, in the above-mentioned May 2014 behavioral health discharge summary from Tanner Medical Center, it was noted that D.M. was admitted for about 1.5 months for mental health treatment beginning in late March 2014. Specifically, D.M. presented with his mother for evaluation and admission to the Child and Adolescent Partial Hospital Program. The summary noted that D.M. experienced auditory hallucinations with persistent derogatory themes, prominent depressive symptoms (described as depressed mood, isolative behavior, intermittent anhedonia), increased agitation, and irritability. The summary elaborated that, after admission, D.M. fully participated in group activities, but his overall insight regarding his psychiatric illness remained poor and that he freely expressed antagonism towards taking medication. In conjunction with this antagonism, the summary noted that D.M.: (1) stated that he did not believe his schizophrenia diagnosis; (2) exhibited acute decompensation and poor attention to hygiene and self-care; and (3) expressed bizarre and illogical statements. These behaviors were improved upon D.M resuming his medication. The summary concluded that, at the date of discharge, D.M. was in good standing, but had limited judgment with poor-to-limited insight. Separate from this May 2014 summary, in a July 2018 statement, the Veteran explained that D.M. had been dismissed from high school. Additionally, the Veteran stated that D.M. had attempted to get a job but was dismissed after 2 to 3 days due to aggressive behavior and attacking other employees. Lastly, the Veteran specified that D.M.'s dismissal from school and work occurred while D.M. was on medication and receiving mental health treatment. Related to his July 2018 statement, the Veteran testified in May 2021 that D.M experienced periodic episodes of stability since schizophrenia had its onset at the age of 12 or 13. Board Hearing Tr. at 6-7. But, the Veteran elaborated that his stepson was hospitalized on several additional occasions even after his 18th birthday and had never experienced a "normal" life, even with a regular treatment and a medication regimen. Id. Considering the above, the Board concludes that D.M.'s schizoaffective disorder, which manifested before his 18th birthday, reduced D.M.'s likelihood of achieving employment and decreased his capability of functioning independently. The record also indicates that these challenges continued after D.M.'s 18th birthday and appear to be permanent in nature. Although D.M. may have been deemed in good standing at the time of discharge in May 2014, his schizoaffective disorder has required additional periods of hospitalization since and the Board finds the Veteran's May 2021 testimony regarding D.M. not having a "normal" life since the diagnosis of schizoaffective disorder to be credible. See, e.g., May 2016 Certificate of Internment IPSAMEN Center, Gruppo Libertad (indicating that D.M. was interned in April 2016 for paranoid schizophrenia and substance abuse disorder). Resolving any reasonable doubt in the Veteran's favor, the Board finds that D.M. was permanently incapable of self-support by reason of a mental defect before reaching age 18. 38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.57, 3.315(a), 3.356. As such, the Veteran's appeal is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED